R v Botrus (No 6)

HIS HONOUR: The offender, Fredon Botrus, was arraigned in the Arraignment List on 14 February 2020 and before a jury on 31 August 2020. He entered a plea of not guilty to a charge of murder on each day.

On 17 September 2020, after trial by jury, the offender was found guilty of the murder of Alfredo Isho (“the deceased”). He was then formally convicted.

The offence occurred at about 12.30pm on 11 January 2019. At 10.37am, the deceased arrived at Classico Hair Studio (“the barbershop”) at 65 Mimosa Road at Bossley Park. The barbershop was one of several shops at that location. At the rear of the shops was a carpark. By 11.25am, the offender had become aware of the presence of the deceased at the barbershop, as it was at that time he sent a Wickr message indicating as such.

At about 12.26pm, the offender rode his “Thumpstar” motorcycle along Mimosa Road past the barbershop. This was captured on CCTV from the café next door to the barbershop. From the CCTV of neighbouring businesses, it is apparent that the offender did a number of laps of the area and rode past the barbershop on four further occasions. He looked into the barbershop each time he rode past.

At around this time, the deceased sat in the barber’s chair which was closest to the back door of the shop. The back door of the shop led onto the carpark. The offender rode to the carpark and parked his motorcycle next to a fence. He walked across the carpark to the back door of the barbershop, still wearing his helmet. Moments later the offender entered the barbershop through the back door. He walked straight up to the deceased, who was sitting in the chair with a barber’s cape over him and stabbed him once near the collarbone.

The offender was 18 years and five months old at the time of the offence. The offender lived in Bossley Park with his parents and three siblings.

The deceased was aged 20 at the time of his death.

In arriving at the offender’s sentence, the purposes of sentencing specified in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Act”) must be borne in mind.

The offender’s sentence must be determined having regard to the maximum penalty for the offence with which he has been convicted. The maximum sentence for the crime of murder is imprisonment for life (s 19A of the Crimes Act 1900 (NSW)).

The Court may nonetheless impose a sentence of imprisonment for a specified term pursuant to s 21(1) of the Sentencing Act. That course may not be taken if the Court is satisfied that the level of culpability in the circumstances of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can be only met through “a sentence of life imprisonment” (s 61(1) of the Sentencing Act).

In SW v R [2013] NSWCCA 103, Hall and Davies JJ stated, relevantly, at [149]:

It is for the Crown to establish that an offence falls within s 61(1) of the Sentencing Act. It did not seek to do so in this case. In my view, it is appropriate, notwithstanding the objective seriousness of the offence, and having regard to the circumstances of the offence and the offender, to impose a finite term, and not, therefore, impose the maximum sentence.

In accordance with s 54A of the Sentencing Act, the seriousness of the offender’s offence must be assessed by taking into account only the objective factors established on the evidence affecting its relative seriousness. The gravity of the offence must be viewed objectively. The objective seriousness of the offender’s offence was in issue between the parties.

The maximum sentence fixed defines the limits of sentence for the most serious class of case: R v Dodd (1991) 57 A Crim R 349 at 354, adopting the approach of Jordan CJ in R v Geddes (1936) 36 SR (NSW) 554 at 556.

In Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 (“Markarian”), the High Court stated (per Gleeson CJ, Gummow, Hayne and Callinan JJ) as follows (at [31]):

The standard non-parole period prescribed for the offence is 20 years’ imprisonment: s 54A(2) and Pt 4 Div 1A Table of the Sentencing Act.

Both the maximum penalty and the standard non-parole period are factors which must be taken into account on sentencing, together with other relevant matters, in the way discussed by the High Court in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 (“Muldrock”) and as is provided in s 54B of the Sentencing Act.

In sentencing, the Court must also consider the aggravating and mitigating factors specified in s 21A of the Sentencing Act as revealed by the evidence. Under s 21A, any other objective or subjective factors revealed by the evidence, which affect the relative seriousness of the offender’s offence, must also be taken into account.

The offender’s moral culpability for his offence must also be taken into account.

Questions of general and specific deterrence must also be considered.

Further, all of the relevant factors must be taken into account by way of the instinctive synthesis which the High Court discussed in Markarian at [51]. That requires that all of the factors relevant in the offender’s case be considered, their significance discussed and a value judgment as to the appropriate sentence for the offender’s offence be made. The result arrived at must also ensure that there is a reasonable proportionality between the sentence imposed upon the offender and the circumstances of the crime he committed: R v Scott [2005] NSWCCA 152 at [15].

A judge’s finding of fact in sentencing is based “both on what was necessarily implicit in the jury verdict and on his/her own impressions”: R v Spathis; R v Patsalis [2001] NSWCCA 476 at [196].

The jury verdict in this matter permits of a determination, as reflected in my earlier discussion of the offending that the offender stabbed the deceased and, as properly conceded by Mr S Pararajasingham of counsel whom appeared for the offender at trial and on sentence, a finding as to the objective features of the matter in accordance with the document produced by the Crown entitled “Proposed Findings of Facts”, particularly having regard to the concentration on the issue of identity at the trial (that document contributed to my findings as to the objective factors in this matter).

In my view, those features permit the conclusion that, as properly conceded by the Crown, the offender’s culpability should be assessed upon the basis of an intention to inflict grievous bodily harm rather than an intention to kill. Notwithstanding that concession, the Crown contended that the question of intent is not the only relevant consideration. Every case will turn on its own facts. It was further contended that the absence of an intention to kill does not necessarily mean that the offence is less serious. Generally, an intention to kill tends to greater objective seriousness than an intention to inflict grievous bodily harm.

I accept that a finding that the offender did not intend to kill but rather to inflict grievous bodily harm will often, but not always, indicate a lesser objective seriousness. The absence of an intention to kill does not necessarily mean that the murder is less serious: Charbaji v R [2019] NSWCCA 28 (“Charbaji”) at [181]. There will be circumstances where, in a particular case, an intention to inflict grievous bodily harm could reflect similar criminality to cases involving an intention to kill: R v Nelson (Unreported, New South Wales Court of Criminal Appeal, 25 June 1996) (per McInerney J, with whom Gleeson CJ and Studdert J agreed); R v Hillsley (2006) 164 A Crim R 252; [2006] NSWCCA 312 at [17] (per Hodgson JA, Adams and Johnson JJ).

However, in my view, the circumstances of the case do not warrant a conclusion that the offender’s intention to inflict grievous bodily harm reflected a similar criminality to intention to kill given the conclusions I will reach as to the nature and extent of the stabbing of the victim and the relatively limited planning and premeditation.

There were two primary areas of dispute as to conclusions as to the objective facts. They were as follows:

It may be noted that the Crown initially submitted that the planning involved was an aggravating factor but ultimately accepted that this was not in the case. This is an appropriate concession. As Basten JA (with whom Hulme J agreed) observed in Moore v R [2016] NSWCCA 185 at [74], the subsection (s 21A(2)(n) does not say that “the offence was planned” but rather that the offence was “part of a planned or organised criminal activity”. Thus, a more extensive criminal undertaking is required. In the current case, a finding that there was some “planning involved” does not engage the statutory aggravating factor; it does however constitute a factor affecting the relative seriousness of the offence. As I will find, whilst the offending was not spontaneous, there was evidence of limited planning, without long premeditation.

Before considering the circumstances of the offence and the offender, it is appropriate to make reference to the victim impact statements of the deceased’s family:

The Crown brought an application pursuant to s 28(4) of the Sentencing Act (given the date of the offence) for the victim impact statements of the deceased’s family to be considered and taken into account by the Court in connection with the determination of the punishment for the offence on the basis that the harmful impact of the victim’s death on the members of the victim’s immediate family is an aspect of harm done to the community: R v Medich (No 43) [2018] NSWSC 886 at [20]-[25], together with the authorities cited therein, per Bellew J.

There was no dispute as to the receipt of the victim impact statements on this basis. When viewed in terms of the relevant principles, the Court is satisfied in this case that the effect on the immediate family is also an aspect of harm done to the community.

The victim impact statements “give texture to the undoubted proposition that every unlawful taking of a human life harms the community in some way” when the Court is taking into account one of the purposes of sentencing, “which is to recognise the harm done to the victim of the crime and the community” (R v Halloun [2014] NSWSC 1705 at [46] (per McCallum J), cited with approval in Sumpton v R [2016] NSWCCA 162 at [153] (per Hoeben CJ at CL, with whom Hall and Bellew JJ agreed)).

The Court acknowledges the understandable statements of grief that have been expressed by the family and the continuing impact that the murder has had upon them. The effect on each of the members of the family differs but it is substantial and ongoing. I will make some brief reference to some aspects of the statements.

Ms Thom stated:

Mr Isho stated:

Ms Isho stated:

All murders are examples of a very serious offence. Nonetheless, whilst it may be difficult for the deceased’s surviving family members to accept that this murder should be categorised in seriousness relative to other murders on the spectrum of such crimes, the Court has to pass sentence for such offences in a very wide variety of circumstances. The ranking of the seriousness of the offence does not detract from the gravity of the offence as all lives are treated as equally precious in the criminal law. Various factors determine whether the taking of a life should, in the particular circumstances of a crime, be more or less heavily punishable.

The fact-finding role following a jury verdict is that described in Isaacs v R (1997) 41 NSWLR 374 (see also Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 at [12]-[17]. The sentencing judge is required to find the facts material to the sentence. To the extent that findings are based on evidence led at trial, they must be consistent with the verdict of the jury. Any findings of fact that are adverse to the offender must be found beyond reasonable doubt. Matters in mitigation must be proved on the balance of probabilities: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27].

About three or four months before the alleged offence, the offender’s father gave the offender a small “Thumpstar” motorcycle. Following this, the offender was regularly seen riding the motorcycle around the area near his house by a number of neighbours, sometimes in the company of other young male persons who also rode the motorcycle in the neighbourhood.

At 10.37am on 11 January 2019, the deceased attended the barbershop to get a haircut. The barbershop was one of a small number of shops at this location.

The deceased arrived at the barbershop alone. When he arrived, there were a number of other people waiting to get their hair cut.

The barbershop’s main entrance was on Mimosa Road. There was also a rear entrance to the shop, which opened out onto an outdoor car park. The rear entrance consisted of a solid wood door and a screen door.

Sometime shortly before 12.30pm, the deceased sat down on the chair closest to the back door of the barbershop. This chair was about two metres away from the open door that led into the kitchen/storage room. On the other side of the kitchen/storage room was the rear entrance, consisting of the two back doors, that led out onto the outdoor car park.

The offender’s residence at Tallowood Crescent was about 1.7 kilometres from the barbershop. On the morning of 11 January 2019, through means unknown, the offender became aware of the presence of the deceased at the barbershop. At 11.25am, using his mobile telephone, the offender sent a message on the application Wickr which read “Yo khon [Arabic for “brother”] there’s kalbe [Chaldean for “bitch”] at the [haircutting emoji]”. I accept the submission by the Crown that it is an inference available, and consistent with the jury’s verdict, that the message was a reference to the deceased being present at the barbershop. At about 12.20pm, the offender left his home on his white Thumpstar motorcycle and set off for the barbershop. He was wearing a navy-blue Henley hooded jumper turned inside out, black pants, a black face mask with a white skull motif, and an “O’Neal” full-face motorcycle helmet. The offender also had a knife concealed in his right jumper sleeve.

At about 12.26pm, CCTV footage from the café next to the barbershop captured the offender riding on Mimosa Road past the barbershop. The footage shows that the offender did a number of laps of the area, riding past the front of the barbershop on four further occasions. On each occasion, the offender was looking into the barbershop.

The offender rode to the carpark at the rear of the barbershop and parked his motorcycle next to the fence. He positioned the motorcycle so that it faced the entrance/exit of the carpark apparently to facilitate a quick getaway. Following this, the offender walked towards the back door of the barbershop.

When the offender reached the back door of the barbershop, the screen door was closed but the wooden door was open. The offender was seen by an employee, Zaya Amanoael, who was still cutting the deceased’s hair at the chair closest to the backdoor. The offender was wearing his motorcycle helmet. Mr Amanoael walked over to the back door and spoke to the offender. The offender said, “I want to have a haircut”. Mr Amanoael said, “Go through the entrance door”. Mr Amanoael then shut the screen door and walked back to the deceased to continue cutting his hair.

A short time later, the offender entered the barbershop having opened the screen door. He walked through the kitchen, straight up to the deceased and stabbed him once with a knife to the right-side of the chest near the collarbone. The offender immediately ran from the shop out the back door. CCTV footage from the car park captured the offender leaving with a knife in his right hand. The offender ran back to his motorcycle, mounted it, and immediately rode away from the scene.

After being stabbed, the deceased stood up from the chair, armed himself with a pair of scissors and walked outside the front of the barbershop. Witnesses immediately encouraged him to go back inside, which he did. A short time later, the deceased began to look pale. He subsequently staggered back outside and collapsed onto a bench. He was assisted by a number of witnesses, however, his condition quickly deteriorated, and he became unresponsive.

At this point, emergency services were called and at about 12.45pm, police arrived at the scene. A short time later, paramedics arrived and began treatment on the deceased. The deceased was subsequently taken to Liverpool Hospital where he underwent emergency surgery. At about 5.07pm, the deceased succumbed to his injuries and he was pronounced deceased.

Dr Maistry conducted an autopsy on the deceased at 9.00am on 15 January 2019. She opined that the cause of the deceased’s death was a stab wound to the chest and the direct consequences of the stab wound, namely, blood loss and injury to the lung.

According to the medical notes from Liverpool Hospital, which she reviewed in preparing her report, a number of injuries were observed. There was a right subclavian artery and vein injury (underneath the clavicle), which was noted in the proximal part near the origin, under the sternoclavicular joint. There was a perforation injury to the right upper lung lobe.

The post-mortem medical examination of the deceased showed a single horizontally aligned stab wound. The stab wound track appeared to go from front to back, medial (to the midline) and downward. A note was made that the right clavicle had been removed during surgical intervention. The wound was of approximately 33 millimetres in length and 32 millimetres with the edges opposed. The estimated depth of the wound was at least 130 millimetres. Prior to the surgical intervention, the wound could have varied. However, knowing that there was a defect to the spine is suggestive that it was quite deep, in the doctor’s opinion.

The offender rode the motorcycle back into his garage and parked it. He stripped the motorcycle and set up two pedestal fans to blow air straight onto the engine in an attempt to cool it down. At about 1.06pm, a white utility vehicle was captured on CCTV driving into Teak Close, just around the corner from the offender’s house. There were two males inside. Again, I accept the Crown submission that there is an available inference, and consistent with the jury’s verdict, that the males were associates of the offender.

After entering Teak Close, the car stopped and Male 1 got out. He walked to the offender’s house and entered via the front door. Following this, Male 2 did a U-turn and parked the ute outside 1 Teak Close. About a minute later, Male 2 got out of the car and walked to the offender’s house. At about 1.14pm, Male 2 returned to the utility on Teak Close. A short time later, he drove out of Teak Close, turning right onto Tallowood Crescent. At about 1.32pm, Male 1 left the offender’s house carrying a blue and white sports bag. Male 1 walked down Teak Close to the end of the cul-de-sac before walking into the reserve until he was out of sight. It can be properly inferred that the bag carried by Male 1 contained the knife used to stab the deceased and distinctive parts of the offender’s motorcycle, including the fairings, petrol tank and the seat.

The offender’s mobile phone was physically examined and later a Cellebrite download was conducted.

A series of messages on Wickr between users “yocatchmee” and “judgeby12” was discovered. Consistent with the jury’s verdict, it may be properly inferred that the offender had the username “yocatchmee”. The identity of “judgeby12” is unknown. This series of Wickr messages related to the offender’s knowledge of the presence of the deceased at the barbershop and the offender having attended there and stabbed him. The messages commenced at 11.25am on 11 January 2019 and concluded shortly after the time of the offence:

In GG v R [2018] NSWCCA 280, Schmidt J (with whom Fagan J agreed) made the following remarks regarding the assessment of the objective seriousness of the offence (at [60]):

In BM v R [2019] NSWCCA 223, the Court (Payne JA, Fullerton and Bellew JJ) stated (at [15]):

The state of mind in which a murder is committed is directly relevant to the assessment of the objective seriousness of the crime: Charbaji at [180] (per Beazley P, Price and Wilson JJ); Apps v R [2006] NSWCCA 290 (“Apps”) at [5] (per Hunt J) and [49] (per Simpson J).

I accept the submissions of the Crown that, the attack on the deceased was “targeted” in the sense that the deceased was known to the offender. At 12.41pm, after the offence, a message was sent from the offender’s phone through the application Wickr. Consistent with the jury’s verdict, the plainly available inference is that it was the offender who sent the message. The message read, “Khonco [brother] it was only the guy who started with my name”. The inescapable inference is that the offender was referring to Mr Alfredo Isho personally.

However, the offender is correct to submit that the status of the evidence precludes the Court from making any finding about the context to the offending behaviour, including motive. This was not called in aid by the offender as mitigation; nor the mid-range.

On the evidence, it must be found that the deceased had no warning of the attack by the offender and was not in a position to defend himself, being seated in a hairdresser’s chair with a hairdresser’s cape around him. The attack occurred in daylight hours in a busy hairdressing salon in a busy shopping centre.

Those facts do permit, therefore, an acceptance of the Crown submission that the offence included a brazen, senseless and cowardly attack on an unsuspecting victim. There were aspects of boasting in the Wickr messages: the offender stated at 12.41pm that he shanked the deceased and at 12.43pm said, “near eknayy [neck] hahaha sk”.

However, the attack was limited in its duration comprising of a single blow. Further, it was not an attack that involved an intention to kill and the objective seriousness of the offence is somewhat reduced by that consideration accordingly.

The offence plainly involved planning and premeditation as demonstrated by the steps taken by the offender. It was not a spontaneous act. There were elements of planning and premeditation demonstrated by the Wickr messages and his attempt to affect a disguise. However, there is also merit in the submissions made by Mr Pararajasingham, that the planning was relatively limited and the premeditation not long. I accept that the earliest occasion in which the Court may find the existence of planning or premeditation is at 11.25am (about 1 hour before the offence) when the accused sent a message (in translated form): that there is a bitch at the hairdresser’s shop. There is no evidence of conduct before that time or of animosity between the offender and the victim (although, I have found, he knew of the victim).

The offender used transport that was available to him and wore items of clothing that were in his possession such as, a long sleeved jumper (turned inside out), pants, a face mask and a helmet. There were also elements of irrationality in the behaviour.

In all the circumstances, I consider the murder to be objectively serious. Whilst it is unnecessary to place the objective seriousness of the offence in a range: McDowall v R [2019] NSWCCA 29 at [35]-[37] (per Adamson J, with Hoeben CJ at CL and Schmidt J agreeing), I consider that the offence lies slightly below the middle range of seriousness.

There are two s 21A aggravating factors of the offence. First, there was the use of a weapon, namely, a knife. This has been taken into account in considering the objective seriousness of the offence and I will, therefore, avoid any double counting of this factor. Secondly, it is an aggravating factor that the offence was committed whilst the offender was on conditional liberty, being subject to bail in the Children’s Court.

The offender’s father, Laith Botrus, gave evidence on sentencing. He gave evidence as to the circumstances of the offender’s earlier life.

His wife and children had fled Iraq for Turkey in 2004 following the fall of the Saddam Hussein government in 2003. The family lived in Turkey between 2004 and 2007 and then migrated to Australia in 2007. The family were part of a Christian minority in Iraq and, after the Iraq war, they were attacked by various Islamist groups. It was a period of extreme persecution for Syrian Christians. During the period, the offender was kidnapped twice.

On the first occasion, the offender was three years of age. He was abducted by Al-Qaeda. He was placed in a plastic bag. Mr Bortrus’ wife had her stomach slashed while pregnant. Their house was set on fire. The offender was later returned, with cuts in his face probably from being dragged.

The offender was again abducted by criminal syndicates when he was four years of age. The syndicate demanded money. When the money was paid, the offender was returned – he was dirty, hungry and scared.

Whilst the family were residing in Turkey, the offender, then six years old, had a serious fall from the fourth floor of a building. The offender was hospitalised, underwent surgery and took six months to walk again.

The offender was very close to his younger brother, Isho. The offender was very protective of his brother. On 1 June 2018, when the offender was 17 years of age, Isho committed suicide. He was found by his father hanging in the family garage. Apart from the understandably, extreme emotional reactions in the family, the offender, when learning of the circumstances became very angry, stayed in his room for two months and did not speak to anyone. He was in a drug rehabilitation program at the time of receiving the news of his brother and subsequently returned to drug use. He has not received treatment or counselling after the death of his brother.

Mr Botrus agreed that the offender had lived in Australia since he was around six and a half years of age; that the transition represented a fresh start for his family to a safe country commencing with residence with his brother. They ultimately became immersed into a “very strong and tight-knit” Assyrian or Middle Eastern community. The offender started school (at Holy Communion Catholic Primary School) as a friendly and respectful boy who helped others including, from 2011, his sister and brothers, caring for their mother after she suffered depression (Mr Botrus became her full time carer when she was released from hospital).

The offender remained a diligent student when he commenced Fairfield High School but later drifted to people of whom Mr Botrus did not approve (nor did the younger brother, Isho). He completed Year 10 in Juvenile Justice and Year 11 at Fairfield School before leaving school in Year 12 to be an offsider for a furniture deliverer and later a construction labourer.

I interpose to note that the offender’s criminal record commenced in 2015, shortly before his 15th birthday. He received a bond without conviction for property offences. He was further subjected to control orders in late 2015 and early 2016 for offences of contravene a non-association and place restriction order, in that respect, and in February 2016 for larceny and goods in person suspected of being stolen.

Similarly, control orders were imposed in 2017 for various drug offences and a failure to stop (police pursuit). There was a call up of control orders in 2017 for the drug offences. Finally, he received a fine in 2018 for unlawfully bringing anything into a place of detention.

Dr Olav Nielssen issued a report on 21 January 2021. He opined that the offender had no features of psychotic illness. Nor was he “pervasively depressed”. His intelligence was in the lower half of the normal range, or simply “low normal intelligence”.

Dr Nielssen diagnosed a substance abuse disorder having regard to a history of abuse of cannabis and alprazolam which was in long term remission. Dr Nielssen opined the drugs produced psychological complications such as impaired cognitive performance and social complications such as “loss of inhibitions and impaired judgment and forethought resulting in serious criminal charges”. These effects exacerbated, he opined, “greater risk taking behaviour and impaired capacity for consequential thinking” associated with adolescence.

Dr Nielssen opined the offender has a vulnerability to depression, over and above the effects of “early life trauma” and his current situation and that causes a greater risk of developing depression in adult life.

Dr Nielssen opined that “it is difficult to offer any kind of prognosis for a person who has committed a very serious offence at the age of eighteen and faces a long term of imprisonment”. The offender would be “expected to acquire maturity and a capacity to participate in self improvement programs and reflect on his behaviour over time”.

Counsel for the offender submitted the effect of the material before the Court, in particular the evidence of Mr Botrus, established, on the balance of probabilities, that the offender had experienced a life punctuated by disadvantage and dysfunction. From tumultuous early childhood years in war-torn Iraq to the attendant stresses and hardship of life as a refugee in Turkey and Australia, the offender’s formative years have been marred by trauma. Further, counsel for the offender submitted that the nadir of these experiences must be the offender's exposure to the suicide by hanging of his 15-year-old brother.

It was further submitted that the offender's childhood disadvantage affected the sentencing discretion in the following ways:

The Crown submitted that:

As to the relevant principles to be applied in sentencing where an offender has pointed to materials tending to establish a background of deprivation, I accept the submissions advanced by counsel for the offender, which are in the following terms:

As to the first of the principles in that submission, reference may be made to the judgment of White JA in Perkins v R [2018] NSWCCA 62 (“Perkins”) (with whom Fullerton J, relevantly, agreed) and the consideration of that judgment in R v Irwin [2019] NSWCCA 133 (“Irwin”) at [116] as follows:

Further, as Simpson AJA stated in Irwin at [2] and [3]:

In my view, the offender did suffer social disadvantage in his early childhood years which include his entry into Turkey and Australia as a refugee. The circumstances of experience were acute and described by Dr Nielssen as “traumatic” although they are not causally connected to the offending.

As mentioned, counsel for the offender correctly put that his brother’s death in 2018 represented the nadir of these experiences.

Those are factors which go to reduce the offender’s moral culpability and, to some extent, the weight that might be attached to general and specific deterrence. Nonetheless, the Crown is correct to submit that the early social disadvantage experienced by the offender must not be taken in isolation from the largely positive experiences and support the offender had in his foundational years in Australia, particularly with respect to his supportive and loving family and close-knit community. I have taken this consideration into account.

As mentioned, Dr Nielssen diagnosed the offender as having a substance abuse disorder. I will return to this topic in the context of considering the offender’s youth. However, for present purposes, I note the Crown submitted that the significance of the offender’s completion of a drug rehabilitation program (or substantial completion) was diminished by his return to drug use although this is centrally connected to his brother’s suicide. This also reduced, although moderately, the significance attached to general deterrence (in the context of his disadvantaged upbringing). Nonetheless, this is a factor I have taken into account in favour of the offender.

An offender’s youth and immaturity or lack of impulse control may be a factor in sentencing the accused, even if 18 years of age at the time of the offence, for a serious crime: BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159 (“BP”) at [5] (per Hodgson JA).

In Thammavongosa v R (2015) 251 A Crim R 342; [2015] NSWCCA 107 (“Thammavongosa”) at [86], Bellew J (with whom R A Hulme J agreed) referenced with approval BP at [3], and concluded, in my respectful view, correctly, that, whilst it may be accepted the weight to be given to factors relevant to a person’s youth diminished the closer the offender approached the age of maturity, consideration may nonetheless be given to the progressive development of the young person (or lack thereof), particularly in relation impulse control and emotional maturity.

The materiality and weight given to that factor in reducing the moral culpability of the offender will depend upon the contribution of those factors to the offending. In Thammavongosa, Bellew J stated (at [86]):

In R v PO [2017] NSWSC 757, the Court stated at [47] (per Fullerton J):

The Crown submitted the offender’s age at the time of the offence, the level of planning and premeditation involved (including the use of disguise) demonstrated adult behaviour, and hence there was no reduction in the moral culpability of the offender by virtue of his age. The Crown further submitted that nether the offender’s use of a Thumpster motorcycle (which was the only means of transportation available because his father was away with the Toyota Kluger) nor the Wickr messages, which could have been sent by someone of advanced years, demonstrated immaturity or impulsiveness.

Counsel for the offender submitted the offender was “cognitively, emotionally and/or psychologically immature”.

I do not accept the Crown’s submission, in this respect, for three reasons:

That finding is relevant to moral culpability and to a limited degree specific deterrence: R v Welling [2003] NSWCCA 318 at [34].

The offender’s criminal history disentitles him to lenience. There is a continuing disobedience to the law, although of a non-violent kind, since 2015.

There is no evidence of remorse by the offender.

Counsel for the offender properly accepted that the Court could only make a guarded finding as to the prospects of rehabilitation.

As mentioned, Dr Nielssen stated that it was difficult to offer any kind of prognosis for a person who has committed “a very serious crime at the age of eighteen and faced a long term of imprisonment”. He opined the offender will mature and be able to reflect on his behaviour over time as well as a capacity to undertake self improvement programs.

There appears to me that only a guarded view may be formed of prospects of rehabilitation with countervailing factors of the return to drug use (even though from the suicide of his brother), the offender’s criminal history, the absence of remorse and infractions in his custodial history.

Given the seriousness of the offending general and specific deterrence are relevant but diminished as previously discussed in these reasons for sentence.

I am conscious of the need to avoid double counting with other factors in sentencing if finding special circumstances and varying the statutory ratio.

There are three factors warranting a finding of special circumstances. First, the offender is still young. Secondly, Dr Nielssen opined he will only develop maturity over time and has low normal intelligence. Thirdly, the offender has a substance abuse disorder. Those special circumstances warrant a modest lowering of the non-parole period or adjustment to the statutory ratio. (See: Casey v R [2015] NSWCCA 142 at [34]-[35] (per Hoeben CJ at CL, with whom Hidden and Adams JJ agreed). In making this adjustment I have had regard to the principle that the ultimate constraint upon the non-parole period is the criminality involved, and where relevant an offender’s subjective circumstances, and must not be reduced to a level beyond that which is “necessary to punish the offender and provide specific deterrence”: Goodbun v R [2020] NSWCCA 77 at [124] (per Fullerton J, with whom Bathurst CJ and Bellew J agreed).

In sentencing the offender I have been mindful of the two legislative guideposts of the maximum sentence and the standard non-parole period together with factors bearing upon the objective seriousness of the offence and subjective features.

I have also had regard to the cases relied upon by the parties as comparable cases: R v Wilson [2005] NSWCCA 112; R v Carr [2009] NSWSC 995; R v Wong [2010] NSWSC 171; MB v R [2013] NSWCCA 254; R v Hines (No 3) [2014] NSWSC 1273; R v Scott (No 6) [2015] NSWSC 678; R v Morris [2017] NSWSC 637; and R v PO [2017] NSWSC 757 (each was summarised in R v Brookes (No 5) [2017] NSWSC 824 (“Brooks”) at [67]) and the judgment in Brooks itself.

The offender has been in custody since his arrest on 11 January 2019.

Pursuant to s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW), I am required to advise you, Mr Botrus, of the existence of that Act and of its application to the offence with which you have been convicted.

For the reasons I have given, I now make the following orders: